Court File and Parties

Court File No.: CR-22-10000493-0000 Date: 2024-08-01 Ontario Superior Court of Justice

Between: His Majesty The King – and – Peter Nygard

Counsel: Neville Golwalla and Ana Serban, for the Crown Brian Greenspan and Michelle Biddulph, for Peter Nygard, Applicant

Heard: July 19, 20, August 25, 2023

Restriction on Publication: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

Ruling on Expert Evidence Application

R.F. Goldstein J.

[1] Peter Nygard was a rich and successful fashion designer and promoter. He was charged with multiple counts relating to sexual assault and unlawful confinement. The Crown theory was that he used his fame, wealth, and the power that came with it to prey on and sexually assault women. Prior to trial the Crown applied to introduce the expert evidence of Lori Haskell. The Crown proposed to qualify Dr. Haskell as an expert in the neurobiology of trauma and the broad spectrum of responses that can occur to a person’s brain and body when they experience a traumatic event.

[2] Mr. Nygard was originally charged with eight counts of sexual assault, and three counts of unlawful confinement related to eight complainants. The Crown ultimately proceeded with 5 counts of sexual assault and one count of unlawful confinement in relation to five complainants.

[3] On September 16, 2023, I ruled that Dr. Haskell could testify as an expert witness with reasons to follow. Mr. Nygard was arraigned before a jury panel on September 20, 2023. His trial continued until November 12, 2023, when the jury convicted him of four counts of sexual assault. The jury acquitted Mr. Nygard of one count of sexual assault and the single count of unlawful confinement (the acquittals related to two different complainants).

[4] I summarized the evidence of the anticipated evidence of the complainants in my earlier similar fact ruling: R. v. Nygard, 2023 ONSC 4416.

[5] What follows are my reasons for permitting Dr. Haskell to testify.

Evidence of Dr. Haskell on the Voir Dire

[6] As noted, the Crown proposed to qualify Dr. Haskell as an expert in the neurobiology of trauma and the broad spectrum of responses that can occur to a person’s brain and body when they experience a traumatic event. She was given no information about the complainants or the allegations against Mr. Nygard. The Crown’s intention was to qualify Dr. Haskell to assist the jury in understanding the neurobiology of trauma.

[7] Dr. Haskell testified that she is a registered clinical psychologist. She has consumed no media about the charges against Mr. Nygard. Dr. Haskell obtained her doctorate in education counselling psychology from the University of Toronto in 1999. She has practiced as a clinical psychologist. She is a member of the Order of Canada. She was recognized for her contributions to mental health services. In her clinical practice she counsels adult clients who have been traumatized by sexual violence. She also counsels clients who have experienced other types of trauma. For example, she works with people who have had automobile accidents or may have other clinical issues. Dr. Haskell also gives professional training to law firms, the police, Crown counsel, and the military. She has been involved in judicial education. Dr. Haskell has conducted training for various professional colleges in different provinces, such as the College of Physicians and Surgeons, the College of Nurses, and the College of Physiotherapists, and the Law Society of British Columbia. She has also conducted training in England, Italy, and Spain. The focus of her training is “more sensitive ways of dealing with a traumatized person, understanding the neurobiology of connection and what happens when someone’s brain is under threat… how that harms and alters their ability to participate.” Dr. Haskell has also treated patients with post-traumatic stress disorder.

[8] Dr. Haskell further testified that when she does training with mental health professionals, she explains both PTSD and developmental trauma, and how that alters a person’s brain, behaviour, and other aspects of personality. Dr. Haskell also does training on the neurobiology of trauma. Although Dr. Haskell is a psychologist and not a neurobiologist, she testified that a psychologist must have an understanding of neurophysiology in order to understand responses to stress and to trauma. She has trained with neuroscientists. Dr. Haskell has testified as an expert witness for both Crown and defence at various tribunals, as well as for the Crown in R. v. Hoggard, 2021 ONSC 5365. Her court and tribunal evidence includes expert testimony before the Colleges of Physicians in Saskatchewan and British Columbia, and the college of massage therapists in British Columbia. Dr. Haskell has also been involved in counselling services for members of the judiciary.

[9] I later summarized Dr. Haskell’s evidence in chief before the jury as follows:

Dr. Haskell described what can amount to a traumatic event, and how the brain and body respond to a traumatic event at the time it occurs. She explained that when a person is exposed to a threatening event that induces fear, extreme stress, or perceived inescapability, the defence circuitry within the brain and the body is automatically activated. This happens almost instantly, within milliseconds, and can be subconscious. The brain is flooded with stress chemicals which impair the function of the prefrontal cortex (the prefrontal cortex is where executive function is carried out); heart rate goes up; and focus narrows to what is essential to survival. Reflex and habit take over. Reflex may include freezing, dissociation (where the brain protects itself by disconnecting from some part of reality), tonic immobility (where the body becomes immobile, but the brain continues to encode experience). Habit will depend on the individual – it may come from personal experience over a lifetime or from training, such as military training or that given to first responders.

Reflexes are standard, but they can be triggered at different stress points and to different events, depending on the particular experience of an individual. For example, a stress response may occur more quickly, or as a result of a less traumatic event, for someone with unprocessed trauma from their past.

The more stressful or traumatic an experience is, and the longer the exposure, the more stress hormones are released, and the greater the impairment of the function of the prefrontal cortex. The two factors most predictive of a more extreme stress response are the perceived unpredictability and the perceived uncontrollability of events.

Dr. Haskell agreed that it may not be obvious or even visibly apparent that someone’s defence circuitry has been activated. For example, possible habit-based responses could include polite acquiescence; placating someone scaring you; going along with the situation; becoming deferential. In the moment, the individual responding with such habits may not realize that they were responding in that fashion.

It is not possible to reason backwards from a stress reaction and conclude that it was caused by a traumatic event. Nor is it possible to say what kind of traumatic event, if the reaction was caused by a traumatic event.

[10] I then summarized Dr. Haskell’s cross-examination evidence for the jury:

In cross-examination Dr. Haskell testified that she is a clinical psychologist and has spent 25 years in the field. She has reviewed the literature. She is not a neurobiologist, but the field of psychology does include some neurobiology. Clinical psychologists deal with anxiety and stress fear.

Further in cross-examination Dr. Haskell testified that the science tells us that a peritraumatic response can last six hours or less, depending on how much stress hormone is released. There can be variability between people exposed to the same traumatic event. Some people may have had training or have had other ways to mediate exposure to trauma. One person might dissociate, and another might go into hyper-arousal, depending on training, or genetic pre-disposition. The body can react in milliseconds. Stress hormones change heart rate, breathing, and different neuroanatomy. Moderate stress, as opposed to acute stress or traumatic stress, may not activate the brain’s response circuitry. An event that does not fall within the Diagnostic and Statistical Manual definition is a stressful situation but not a traumatic event.

Dr. Haskell agreed further in cross-examination that the “science lesson” she gave would not equip a lay person with the tools to determine if someone has experienced a traumatic event.

Dr. Haskell further agreed that the defence circuitry could be triggered by non-traumatic events, such as toxins or even studying for an exam. As well, an outside observer may or may not be able to tell if a person was having a stress response. Some stress responses are visible, such as a panic attack or tonic immobility, but others are not observable. A person experiencing a traumatic event could resort to habit behaviour or polite acquiescence and an observer would not know that the person was having a stress reaction.

Dr. Haskell further testified that when defence circuitry is activated memories of a traumatic event may not be encoded in a coherent narrative. In other words, someone might not be able to tell a coherent narrative of the event because trauma may have affected it. She was aware that other neuroscientists have argued that some memories can be fragmented. Dr. Haskell did not accept that viewpoint and testified that she felt those studies were flawed.

Dr. Haskell also agreed that a person might not be able to tell a coherent narrative because of the passage of time, the alteration of memory through the recall process, or simply because the person is not telling the truth.

[11] I now turn to the issues on the application.

Issues

[12] Expert evidence is presumptively inadmissible. There are four threshold requirements to the admission of expert evidence:

• Relevance;
• Necessity in assisting the trier of fact;
• The absence of an exclusionary rule; and,
• A properly qualified expert.

See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 1; R v. Mohan, [1994] 2 S.C.R. 9 at paras. 17-21.

[13] The expert inquiry should proceed in two stages. The first stage requires the judge to determine whether the evidence meets the threshold Mohan requirements of relevance, necessity, a properly qualified expert, and the absence of an exclusionary rule. Relevance refers to logical relevance. Where the evidence does not meet the four criteria, it should be excluded: White Burgess Langille Inman v. Abbot and Haliburton Co., para. 23.

[14] The second stage requires the judge to undertake a cost-benefit analysis. The judge must balance the potential risks and benefits of admitting the evidence: R. v. Abbey, 2009 ONCA 624; White Burgess Langille Inman v. Abbot and Haliburton Co., para. 24. I will refer to this stage as the gatekeeping stage.

[15] The defence argued that the proposed evidence failed all four of the Mohan criteria. Even if the evidence passed Mohan muster the defence argued that I should exclude it at the gate-keeping stage. The defence also argued that Hoggard should not be followed. In that case, my colleague Roberts J. permitted Dr. Haskell to provide expert evidence in much the same way that the Crown proposes in this case. The defence argued that the only probative value of the evidence was simply a form of oath-helping because the expert assumed that Mr. Nygard sexually assaulted the complainants. The defence also argued that because the ruling on Dr. Haskell’s qualifications was fact-specific, horizontal stare decisis did not apply. I agree that in this case horizontal stare decisis did not apply because Roberts J. made a specific ruling about a specific evidentiary issue. That said, I found the judgment in Hoggard to be helpful and I agree with Roberts J.’s observations about the law.

[16] Roberts J. specifically prohibited Dr. Haskell from giving evidence about areas where the science was not well-established. Where the expert relies on novel science, or science for a novel purpose, the underlying reliability of the science must be established: R. v. J.(J.-L.), 2000 SCC 51, at paras. 33-35; White Burgess Langille Inman v. Abbot and Haliburton Co., at para. 23. Roberts J. specifically prohibited Dr. Haskell from testifying about the linkage between the neurobiology of trauma and the behaviour of sexual assault victims. Roberts J. was not satisfied that the linkage was properly the subject of expert evidence, at least at that point in time. As a result, the Crown was permitted to adduce a “pared-down” version of Dr. Haskell’s evidence that omitted any reference to those purported links: R. v. Hoggard at para. 72. The Crown in this case did not seek to introduce evidence about the purported links. The Crown did seek to call Dr. Haskell to give, in essence, the same evidence she did in the Hoggard trial. The Crown did not propose to call the evidence that Roberts J. excluded.

[17] The defence conceded that there is no other exclusionary rule that would disqualify the evidence.

[18] It is helpful to understand what I told the jury about the expert evidence. First, I instructed them that there is no typical sexual assault complainant or typical response to sexual assault. I did so in the manner that has become common since R. v. Barton, 2019 SCC 33. I told the jury the following:

Do not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. My purpose in telling you this is not to support a particular conclusion but to caution you against reaching conclusions based on common misconceptions. You must approach the evidence with an open mind and without preconceived ideas. You must make your decision based solely on the evidence and in accordance with my instructions on the law.

I am also instructing you that you must not find that a complainant in a case involving alleged sexual offences is less credible simply because she has delayed disclosing the assault. Some people report immediately, and others report much later or never report. Some people report alleged sexual offences incrementally. There may be many reasons why a person may delay reporting or report incrementally. Fear, guilt, shame, and lack of understanding may play a role in delaying disclosure. The timing of the reporting is simply one circumstance to consider when you consider all of the evidence.

[19] For ease of reference, I refer to this instruction as “the Barton instruction”.

[20] Ultimately, I instructed the jury as follows regarding Dr. Haskell’s evidence:

Dr. Haskell was permitted to testify for the very limited purpose of helping you understand my instruction that there is no single or model response to a trauma like a sexual assault. She has never met the complainants and knows nothing about their evidence. Her evidence cannot be used to diagnose the complainants’ behaviour or conclude that their behaviour is consistent with having been sexually assaulted. Nor can her evidence equip you to diagnose the complainants; nor do you need to so in order to decide this case.

[21] I turn to the specific issues.

(a) Is the proposed expert evidence relevant to a fact in issue?

[22] The defence argued that the Crown seeks, in essence, to bolster the credibility of the of the complainants. It is a form of oath-helping. Moreover, it assumes that the complainants each experienced trauma because their reactions conform to the expert evidence. In other words, the evidence can only become relevant if the complainants were, in fact, sexually assaulted. The evidence is of no relevance if the complainant experienced no trauma.

[23] Evidence is relevant if it tends to establish a material fact. At the admissibility stage the judge determines logical relevance. Logical relevance refers to “a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”: R. v. Abbey, 2009 ONCA 624 at para. 82. See also: R. v. Calnen, 2019 SCC 6 at para. 108; White Burgess Langille Inman v. Abbot and Haliburton Co., at para. 36.

[24] While the defence argument is superficially attractive, I do not agree. The true relevance of the evidence is not to classify or diagnose the reaction of any particular complainant. The defence planned to challenge the credibility of the complainants at trial (and ultimately did so). Each of the complainants described how they reacted to the alleged sexual assaults by Mr. Nygard. I am required to instruct the jury that they must not use myths and stereotypes in assessing the credibility of the complainants. The true relevance of the expert evidence was to assist the jury in understanding that there are myths and stereotypes about how people who have undergone a traumatic experience should act. The instructions sought to disavow those myths and stereotypes. The expert evidence, in essence, explains the scientific basis for the Barton instruction. In other words, the instruction was relevant to assisting the jury in assessing credibility in accordance with the Barton instruction.

[25] Moldaver J. set out the problem in the first paragraph of Barton:

We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society.

[26] In this case, each of the complainants (the five who ultimately went to trial, the three who did not form part of the indictment, and the off-indictment similar fact witness) all described situations where they did not “cry out for help” or delayed disclosure, or failed to do one of the things that a “true” sexual assault victim would supposedly do. Delayed disclosure, in particular, can never give rise to an adverse finding of credibility against a complainant: R. v. D.(D.), 2000 SCC 43 at para. 65.

[27] Regrettably, even relatively recent cases illustrate how myths and stereotypes are still persistent, even among judges and even in the last supposedly more enlightened years.

[28] In R. v. Lacombe, 2019 ONCA 938, the trial judge found that “while not determinative it is significant that [the complainant] presented herself to Richard Lacombe dressed in a loose fitting pyjama top with no bra and underwear, engaging with a man that she really did not know well at all…” on two occasions. The trial judge also stated that: "Common sense and life experiences would comport with the notion that something was happening on April 18 and 19 between [the complainant] and Richard Lacombe, but not as [the complainant] would have this court believe." The trial judge also found that the complainant’s failure to immediately complain or report the assault impacted on her credibility. The Court of Appeal found that the trial judge’s comments reflected myth-based reasoning and infected his credibility analysis. Pepall J.A. stated at para. 52 that: “The trial judge's ultimate reliance on "common sense and life experiences" did not cleanse his assessment as his common-sense inferences reflected stereotypical sexual and myth-based reasoning. They infected his consideration of the complainant's evidence and his assessment of reasonable doubt.”

[29] Lacombe is not the only case in the last few years where trial judges have used myth-based reasoning and been overturned for doing so. I mention Lacombe only by way of example. Sometimes this has been under the guise of using “common sense” reasoning. For example, see: R. v. A.B.A., 2019 ONCA 124; R. v. A.R.J.D., 2018 SCC 6. Since I ruled in this matter, some trial judges have used myth-based reasoning, and been overturned as a result: R. v. Ukabam, 2024 SKCA 15. Very recently, in R. v. Varghese, 2024 ONSCA 555 the Court of Appeal observed at paras. 37-38:

… In Lacombe, at para. 45, this court found that the trial judge committed a reversible error in comparing a complainant’s conduct “to conduct [expected] of a sexual assault complainant without giving any consideration to her evidence of fear”.

The trial judge in this case made the same error. Her “common sense” reasoning presupposes that a person who has been the victim of a violent sexual assault would attempt, possibly at the risk of injury, to flee at the first opportunity from her assailant. This is the very sort of stereotypical reasoning that courts have been instructed not to rely on. If the trial judge had instructed jurors that, based on common sense, they could infer that the complainant lacked credibility because she did not behave in the way that they might imagine a victim of sexual violence would behave immediately after the alleged assault, this would have been an error of law. It is no less an error of law when the trial judge herself engaged in such reasoning.

[30] In R. v. Steele, 2021 ONCA 186, the complainant and the accused told radically different stories. The complainant testified that the accused took her to an abandoned trailer and sexually assaulted her. The accused agreed that they went into the abandoned trailer but testified that they had consensual sex. The accused was acquitted. The Crown appealed. The Court of Appeal allowed the Crown’s appeal. The trial judge did not believe the complainant because she could not explain why she went into the trailer with the accused, who she said she did not like; and also that her response to her father, who called her, was not the response of someone who had been sexually assaulted and kept against her will in a trailer. Benotto J.A. found that the trial judge erred in law by engaging in stereotypical reasoning about both findings. Van Rensburg J.A. did not agree that the judge erred regarding the entry to the trailer; but agreed that the judge engaged in stereotypical reasoning in relation to the call to the father.

[31] It stands to reason that if judges, who have training and experience and are presumed to know the law can still make these errors, then without proper instruction juries can make these errors as well. Thus, the expert evidence was high relevant to the assessment of credibility – a fact in issue. The credibility analysis of juries is guided, in part, by the Barton instruction. The scientific basis for the Barton instruction was, therefore, something very much relevant to a fact in issue – whether the complainants were credible.

(b) Is the proposed expert evidence necessary to assist the trier of fact?

[32] The defence argued that the evidence was not necessary. As the defence put it in their factum:

The primary flaw with this proposed evidence is necessity: it is simply not necessary for the jury to hear expert evidence in order to understand the mandatory jury instructions on the prohibition of myth-based or stereotypical reasoning. The Crown argues otherwise, claiming that because judges occasionally err in utilizing myth-based or stereotypical reasoning to assess the credibility of complainants, expert scientific evidence is necessary in order for the jury to understand why it is prohibited from using myth-based or stereotypical reasoning to assess the credibility of complainants. The problem with this submission is simple: the Supreme Court has repeatedly directed trial judges to address the dangers of stereotypical and myth-based reasoning through jury instructions. A wide body of case law has held that expert evidence which seeks to cloak a basic jury instruction in scientific jargon is inadmissible. The proposed evidence in this case, being aimed only at providing a scientific explanation for a jury instruction that the Supreme Court has repeatedly held is mandatory, falls squarely within that body of case law. Any attempt by the Crown to argue that it is necessary for the trier of fact to hear this evidence in order to be able to understand the evidence of a person who has experienced trauma leads to one glaring and unavoidable conclusion: expert evidence would be necessary in every single trial of a violent offence. This cannot be correct.

[33] I agree that trial judges must instruct juries about myths and stereotypes. That was done in this case. I gave what I am calling the Barton instruction. I also agree that we expect juries to follow instructions. My experience as a trial judge is that juries do conscientiously follow instructions.

[34] With respect, however, I did not agree with the defence argument because it was, again, aimed at the wrong thing. The question was not whether juries follow instructions or whether I must instruct the jury about how a typical victim will or will not behave. Rather, the question in this case was about whether the jury would understand the task of credibility assessment, and whether expert evidence was necessary for them complete that task. Expert evidence is necessary when the jury may come to the wrong conclusion without it, or where important information will be lost unless expert evidence is called: R. v. D.D., at para. 57; R. v. Lavallee, [1990] 1 S.C.R. 852 at para. 31.

[35] In my respectful view, applying D.D. and Lavallee, expert evidence was necessary. The Supreme Court has found that expert evidence may be necessary for juries to understand evidence about human behaviour. An expert may not opine about the credibility or reliability of a witness. An expert may, however, give evidence on human conduct and the psychological and physical factors that may lead to particular behaviours: R. v. Marquard, [1993] 4 S.C.R. 223 at para. 51; R. v. Lavallee at paras. 31-35.

[36] I agree with and follow the reasoning of my colleague Roberts J. on this point. I adopt her reasoning at paras. 84, 91, 92 of R. v. Hoggard:

It is well-established that expert evidence may be necessary to properly understand the behaviour of a witness, regardless of whether that behaviour is rooted in pathology (such as battered wife syndrome in R. v. Lavallee, [1990] 1 S.C.R. 852) or within the norms of how humans may behave in certain situations (such as delayed disclosure as described in D.D.). What is essential is that without expert help the trier of fact may not be able to understand the behaviour and draw appropriate inferences in relation to it. The inability to understand may be due to the operation of myths. Justice Wilson quoted the following explanation for the admission of expert evidence about the psychological effects of battering with approval:

It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge…

As noted in the relevance section, there are a number of circumstances in this case that give rise to a reasonable concern about myth-based reasoning. The anticipated evidence of both complainants contains features that could be misunderstood, as described above. There is no real dispute that steps must be taken in this case to avoid myths infecting the jury's application of its collective common sense. The real question, as noted at the outset, is whether this can be addressed through a jury instruction or whether expert evidence is required.

This is a difficult question. The simplicity and clarity of a jury instruction is very appealing. Ultimately, however, I do not think it would be effective in the circumstances of this case. Not because jury's do not follow instructions, I believe that they do; but because an instruction alone will not make sense unless it includes at least some of the basic scientific phenomena that inform it. In other words, in the circumstances of this case, in order to apply the instruction that there is no one response to sexual assault, and that "real" victims do not necessarily call for help or struggle or flee, I believe that that the jury needs to understand why that may be the case.

[37] I find that the proposed evidence is necessary for the trier of fact to understand the neurobiology of trauma, to help the trier of fact disregard myths and stereotypes and approach the evidence free of bias.

(c) Is the proposed expert properly qualified?

[38] The defence argued that Dr. Haskell was not qualified to give expert evidence on the neurobiology of trauma. Dr. Haskell is not a neurologist, a biologist, or a neurobiologist. She is a practicing clinical psychologist. She has not published in the area of neurobiology. She has published on the psychology of victims of trauma, but that is the extent of it. The defence also pointed to an inaccuracy in her C.V. which continues to go uncorrected, although she has acknowledged it. The defence has also pointed to errors in scientific citations in her material. The defence position is that it shows, in essence, that Dr. Haskell is sloppy. The defence also argued that most of her knowledge of the subject comes from reading the literature in the field. That is no substitute for actually studying, practicing, and working in the field of neurobiology. Her advocacy is also a sign of bias.

[39] The defence also took issue with what was characterized as Dr. Haskell’s unfamiliarity with various scientific concepts that are at odds with her own understanding of the neurobiology of trauma. Several of these were put to her in cross-examination, both before Roberts J. and before me. With respect, I find that these are matters that go to the weight of the opinion. They were best left for the jury. In my view they did not impact on her qualifications or otherwise.

[40] The main defence argument was presented in the factum:

The main problem with Dr. Haskell’s evidence is that it provides a generic, high-level overview of complex and nuanced scientific studies in a field that is constantly shifting and developing, interpreted through the lens of her clinical experience counselling sexual assault victims, and then presented as irrefutable and undeniable propositions of fact. She viewed her role as being to read a lot of work written by experts in the field of neurobiology, synthesize those ideas into her own words and with her own interpretation, and then present the science as being well settled and beyond reproach. It is hard to overstate the dangers with this type of ‘expert’. She lacks advanced training in the scientific field she purports to study, synthesizes her own curated list of studies that she likes to draw on, then places her own interpretation on complex neurological concepts through the lens of clinical psychology and presents the science to this Court as being beyond reproach.

[41] Respectfully, I disagreed and found that Dr. Haskell is qualified to give the evidence that the Crown proposes.

[42] I do not agree that Dr. Haskell’s advocacy on behalf of victims was disqualifying. A person can be both an advocate and expert. Indeed, many experts are advocates: R. v. Shafia, 2016 ONCA 812 at para. 253.

[43] In R. v. Pham, 2013 ONSC 4903 at para. 31, Durno J. helpful set out a list of factors a trial judge may consider when determining if an expert is qualified:

• the manner in which the witness acquired the special skill and knowledge upon which the application is based;
• the witness' formal education (i.e. degrees or certificates);
• the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);
• the witness' membership and participation in professional associations related to his or her proposed evidence;
• whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;
• the witness' experience in the proposed area(s);
• whether the witness has taught or written in the proposed area(s);
• whether, after achieving a level of expertise, the witness has kept up with the literature in the field;
• whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;
• whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and
• whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

[44] Several courts have accepted these factors as helpful in determining whether an expert is qualified: R. v. Vander Wier, 2013 ONSC 7390; R. v. Whitby, 2023 SKKB 58; R. v. Scott, 2018 BCSC 1739; R. v. D’Souza, 2016 ONSC 4294.

[45] When I evaluate the factors set out in Pham in relation to Dr. Haskell, I make the following findings:

• Dr. Haskell is a registered clinical psychologist with a doctorate in education counselling;
• Although Dr. Haskell has learned much about neurobiology from the literature, the key point is that as a clinical psychologist she must have a working knowledge of neurobiology in order to treat trauma victims;
• Dr. Haskell is a member of the College of Psychologists of Ontario;
• Dr. Haskell has published numerous articles in the area of trauma and the treatment of trauma victims;
• Dr. Haskell has been qualified to give expert evidence both in court and before tribunals.

[46] There is no doubt that, as the defence argued, Dr. Haskell is not a neurobiologist. In my view she doesn’t need to be. The only requirement is that the expert have knowledge and experience going beyond the trier of fact: R. v. Marquard, at para. 35. I accept her uncontradicted evidence that a knowledge and understanding of the neurobiology of trauma is necessary for a clinical psychologist to treat victims of traumatic experiences. I also accepted that some of Dr. Haskell’s work was sloppy. There were errors in her CV and her presentation that had gone uncorrected after the Hoggard trial. That sloppiness did not make her look good. I found that the sloppiness did not rise to the level that it caused me to question Dr. Haskell’s impartiality or expertise. In my view, it was a matter of weight for the jury.

[47] After watching Dr. Haskell testify, I was satisfied that she who understood that her duty was to the court. She was qualified to give expert evidence in this case.

(d) Do the costs of the proposed evidence outweigh the benefits?

[48] At this stage of the analysis, the trial judge exercises a gatekeeping function. The gatekeeping function is not a “bright line” test. The trial judge must undertake a cost-benefit analysis in order to determine whether the factors balance in favour of the admission of the evidence: R. v. Abbey, at para. 79. Cromwell J. described the gatekeeping step in White Burgess Langille Inman v. Abbott and Haliburton Co. at para. 24:

At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J. (J.-L.), Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para 47. Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76.

[49] The defence made three arguments at this stage: first, this type of evidence is highly resistant to cross-examination because the jury may well be overwhelmed by scientific terms and simply abandon the fact-finding role to the expert. Second, the trial could turn into a battle of experts – increasing the length and complexity of the case – because the defence may be required to call its own expert to refute Dr. Haskell’s evidence. And third, the admission of the evidence would require an unduly complicated jury instruction.

[50] I did not agree with these three arguments.

[51] First, it was open to the defence to properly and effectively cross-examine Dr. Haskell. As was apparent from both the Hoggard case and from the voir dire evidence in this case, defence counsel was well-equipped to cross-examine the witness. Dr. Haskell was not a perfect witness. She had vulnerabilities that were apparent during the voir dire. Some of those included her tendency to reject contrary theories – but, again, that was a matter of weight for the jury rather than a question of admissibility. The fact that an expert does not accept a contrary theory is not a reason to exclude the evidence. It is up to the expert to explain why they reject that theory and why their own theory is superior.

[52] Second, the mere fact that the defence may be required to call its own expert is not in and of itself a reason to exclude Dr. Haskell’s evidence. Having multiple experts is a feature of many trials. The mere fact that the trial may be longer and more complicated is certainly a cost. Whether it is worth the cost must be evaluated in light of the facts of the particular case. In this case the potential cost – and it is only a potential cost – did not outweigh the benefit to the jury of having this evidence. [1]

[53] Third, and finally, I did not agree that the jury instruction would be unduly complicated by the expert evidence. I gave the jury the standard jury instruction regarding experts with some modifications. I am confident that the jury was not confused by the instructions and that they followed them conscientiously.

[54] At the end of the argument, I was satisfied that the benefit to the jury of having the scientific basis for the Barton instruction outweighed the costs in terms of time and complexity. I did not believe it was necessary to exercise my gate-keeper function by excluding the evidence. I was persuaded that the benefits of the assistance to the jury in understanding the Barton instruction outweighed the costs in time and complexity.

Disposition

[55] The Crown’s application was allowed. Dr. Haskell was permitted to testify as an expert witness. I did not prepare lengthy reasons at the time I allowed the Crown’s application because the trial itself was about to commence and time did not permit it. Hence, the release of these reasons now.

R.F. Goldstein J.

Released: August 1, 2024

Footnotes

[1] At trial the defence did not call an expert witness.